This is
an action brought under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, to obtain records
created by the Federal Bureau of Investigation
(“FBI”) during the course of the FBI’s
processing of other FOIA requests. In January 2016, the Court
issued an opinion that required the FBI to produce certain
records, permitted the FBI to withhold other records, and
solicited supplemental briefing and declarations with respect
to yet other records. See Shapiro v. U.S. Dep’t of
Justice (Shapiro I), No. 13-555, 2016 WL 287051
(D.D.C. Jan. 22, 2016). In April 2016, after seeking the
parties’ positions on the remaining issues in the case,
the Court issued a second opinion, permitting the FBI to
assert certain FOIA exemptions for the first time with
respect to the records it had ordered produced but denying
the FBI permission to assert other exemptions, and directing
the FBI to produce the records not affected by the remaining
issues in the case. See Shapiro v. U.S. Dep’t of
Justice (Shapiro II), No. 13-555, 2016 WL
1408080 (D.D.C. Apr. 8, 2016). The FBI has moved for
reconsideration of Shapiro II, Dkt. 55, and has
moved for a partial stay of its production obligations
pending final judgment, Dkt. 60.

For the
reasons that follow, the Court GRANTS in part and DENIES in
part the FBI’s motion for reconsideration, and GRANTS
in part and DENIES in part the FBI’s motion for a
partial stay.

I.
BACKGROUND

The
facts and procedural history of this complex FOIA suit are
set out in the Court’s past opinions, see Shapiro
I, 2016 WL 287051, at *1-8; Shapiro II, 2016 WL
1408080, at *1-4, and the Court will recount them only
briefly here.

The
plaintiffs are journalists, advocates, and nonprofit
organizations who seek the records that the FBI creates
during the course of processing FOIA requests. Between 2010
and 2012, the plaintiffs filed FOIA requests with the FBI to
obtain such records, to which the FBI responded in a variety
of different ways. First, citing two categorical policies
then in force, the FBI denied all of the plaintiffs’
requests for certain kinds of records (called “search
slips, ” “processing notes, ” and
“case evaluation forms”) as categorically exempt
under FOIA. Second, the FBI denied some of the
plaintiffs’ requests for records on additional targeted
grounds. It withheld records from plaintiff Truthout on the
ground that the deliberative-process privilege protected
processing notes responsive to its request. Shapiro
I, 2016 WL 287051, at *7. The FBI withheld records from
plaintiffs NSC and Stein on the ground that the records
responsive to their requests implicated the privacy interests
of third parties. Id. at *20. And it withheld parts
of records from Stein on the ground that various
exemptions-Exemptions 5, 6, 7(C), 7(D), and 7(E)-protected
those portions of the relevant records. Id. at *22.

In
Shapiro I, the Court considered both the FBI’s
categorical policies concerning search slips, processing
notes, and case evaluation forms and the more targeted
assertions that the FBI had made in response to particular
plaintiffs. The Court concluded first that both of the
policies relied on by the FBI to categorically deny records
to the plaintiffs were inconsistent with FOIA. Id.
at *9-18. With respect to the targeted assertions, the Court
concluded that the FBI had acted consistent with FOIA in
withholding some of the records it had withheld and sought
additional information with respect to the FBI’s other
withholdings. Id. at *18-28. In particular, the
Court sought additional briefing and evidentiary submissions
with respect to (1) the FBI’s assertion of the
Exemption 5 attorney work-product privilege in response to
Stein’s second FOIA request, id. at *24-26,
and (2) the FBI’s assertion of the Exemption 5
deliberative-process privilege in response to
Truthout’s FOIA request, id. at *27-28. The
Court asked the FBI to provide, with respect to this latter
issue, “factual material that would explain why the . .
. processing notes compiled in processing Turthout’s
request are any more ‘predecisional’ or
‘deliberative’”-and thus shielded by the
deliberative-process privilege-“than any other . . .
processing notes.” Id. at *28.

The
Court did not enter an order directing the FBI to produce the
withheld records at the time it issued its opinion in
Shapiro I. Instead, at a status conference held on
February 26, 2016, the Court asked the parties for their
positions on the timeline for briefing the remaining issues
in the case. The parties filed a joint status report on March
11, 2016, in which they set out radically different views of
the issues remaining in the case. The FBI explained that it
had “discontinued” one of the two policies the
Court declared unlawful in Shapiro I-indeed, that it
had terminated the policy some eight months before the
Court’s decision, in May 2015. Dkt. 51 at 2; Dkt. 51-1
at 3 (Fourth Hardy Decl. ¶ 6). The FBI stated its
intention of “submit[ting] further briefing on [its]
modified policy” for the Court’s review. Dkt. 51
at 3. The FBI also explained that it had “anticipated
that information contained in all processing
records” (including those records that it had
previously withheld only on the basis of its defunct policy)
“would also be protected under FOIA Exemptions 1, 3, 6,
7(A), 7(C), 7(D), and 7(F) and reserved those exemptions in
the event its categorical treatment was not affirmed, ”
pointing to a footnote in a declaration attached to its
original motion for summary judgment that purportedly
presented these arguments. Dkt. 51 at 2 (citing Dkt. 21-3 at
25 n.20 (Hardy Decl. ¶ 75 n.20)) (emphasis added). The
FBI also stated its intention to withhold additional
information in these records pursuant to these newly
identified FOIA exemptions. Dkt. 51 at 2.

On
April 8, 2016, the Court issued its opinion in Shapiro
II. Relying on the D.C. Circuit’s opinions in
Maydak v. U.S. Department of Justice, 218 F.3d 760
(D.C. Cir. 2000), and August v. FBI, 328 F.3d 697
(D.C. Cir. 2003), it concluded that the FBI had waived (a)
its right to assert its new search-slip policy and (b) its
ability to assert additional targeted exemptions by failing
to raise those issues before the Court issued its opinion in
the case and failing to provide sufficient justification for
its belated assertions. See Shapiro II, 2016 WL
1408080, at *1-4. Consistent with Maydak and
August, however, it nonetheless permitted the FBI to
assert any exemptions that, if not entertained, might
“compromis[e] national security or sensitive, personal,
private information.” Maydak, 218 F.3d at 767.
The Court also directed the FBI to produce any non-exempt
records to the plaintiffs on or before May 10, 2016.
Shapiro II, 2016 WL 1408080, at *5.

The FBI
has moved for reconsideration of the Court’s decision
in Shapiro II, arguing that the cases on which the
Court relied-specifically, Maydak and
August-do not apply where the agency makes an
untimely exemption claim in the district court (rather than
the court of appeals). Dkt. 55. The FBI has also moved for a
partial stay of its production obligations, arguing that the
Court should stay any production not implicated by the
ongoing briefing (specifically, the “case evaluation
forms” the Court ordered produced in Shapiro
I) until the Court enters final judgment in the case.
Dkt. 60. The plaintiffs oppose both motions. See
Dkts. 61, 62. The Court held oral argument on these motions
on May 19, 2016.

II.
LEGAL STANDARD

Because
the Court has not entered final judgment, the FBI’s
motion for reconsideration is governed by Federal Rule of
Civil Procedure 54(b), which permits the Court to revisit any
order that adjudicates “fewer than all the claims or
rights and liabilities of fewer than all the parties . . . at
any time before” the entry of final judgment.
Fed.R.Civ.P. 54(b). Rule 54(b) is a “flexible”
rule that “reflect[s] the ‘inherent power of the
rendering district court to afford such relief from
interlocutory judgments as justice requires.’”
Cobell v. Jewell, 802 F.3d 12, 25 (D.C. Cir. 2015)
(quoting Greene v. Union Mut. Life Ins. Co. of Am.,
764 F.2d 19, 22 (1st Cir. 1985)). But a court will ordinarily
grant a motion for reconsideration under Rule 54(b) only when
the movant demonstrates that there has been “(1) an
intervening change in the law; (2) the discovery of new
evidence not previously available; or (3) a clear error in
the first order.” Stewart v. Panetta, 826
F.Supp.2d 176, 177 (D.D.C. 2011).

III.
DISCUSSION

A.
Motion for Reconsideration

1.
Maydak, August, and Forfeiture

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
FBI&rsquo;s primary argument in support of its motion for
reconsideration is that the Court erred in applying the
waiver rule announced in Maydak and August
to its belated assertions of the targeted FOIA exemptions on
which it now seeks to rely. In the FBI&rsquo;s view,
Maydak and August apply only where the
government seeks to assert new FOIA exemptions &ldquo;on
appeal or on remand following appeal, &rdquo; see
Dkt. 55-1 at 4 (quoting Wash. Post Co. v. HHS, 795
F.2d 205, 208 (D.C. Cir. 1986)), and, by contrast, where the
government seeks to assert new FOIA exemptions in the
district court, the waiver principles applied in
Maydak and August generally do not apply.
In essence, the FBI argues, it should be free to assert
additional claims seriatim in the district court, as
long as it does not act in bad faith and does not assert new
exemptions after the district court has entered final
judgment. The ...

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